Velazquez v. Chardon

• Decision Date: 14 December 1983
• Docket Number: Civ. No. 80-2333(PG),81-1419(PG).
• Citation: 576 F. Supp. 476
• Parties: Juan A. Valles VELAZQUEZ, Plaintiff, v. Carlos CHARDON, et al., Defendants. Enelida Rios SALAS, Plaintiff, v. Carlos CHARDON, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

576 F. Supp. 476

Juan A. Valles VELAZQUEZ, Plaintiff, v. Carlos CHARDON, et al., Defendants.

Enelida Rios SALAS, Plaintiff, v. Carlos CHARDON, et al., Defendants.

Civ. Nos. 80-2333(PG), 81-1419(PG).

United States District Court, D. Puerto Rico.

December 14, 1983.

Cancio, Nadal & Rivera, Jesús R. Rabell Méndez, San Juan, P.R., for plaintiffs.

Armando Lasa Ferrer, Lasa, Vicente & Jiménez, Santurce, P.R., Inés Eguia Miranda, Dept. of Justice, Roberto Córdova, San Juan, P.R., for defendants.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

These cases are before the Court upon plaintiffs' motions to vacate our Order of October 21, 1983. In said Order we granted the motions for summary judgment filed by defendants in each of the above-captioned cases. Plaintiffs assert in their motions to vacate that the Court failed to consider the allegations and arguments based on the "continuing violation" theory, which were raised by them in their respective oppositions to defendants' motions for summary judgment. After renewed consideration of plaintiffs' allegations of continuing violations, the Court still believes that the granting of defendants' motions for summary judgment was proper for the reasons stated hereafter.

We agree with plaintiffs that if the alleged violations of their civil rights are found to constitute a pattern of continuing discrimination, rather than single acts of discrimination, these cases would not be time barred. Where a plaintiff alleges claims which may be classified as "continuing" acts of discrimination, the complaint will not be barred by the applicable statute of limitations. See generally, Goldman v. Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980); Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982); Tarvesian v. Carr Division of TRW, Inc., 407 F.Supp. 336 (D.Mass.1976). However, plaintiffs herein have failed to state a continuing violation with the required specificity.

In Goldman v. Sears, Roebuck & Co., supra, the United States Court of Appeals for the First Circuit announced the standard for determining when a continuing violation is stated:

"To state ... a continuing violation ... a complaint must indicate that not only the injury, but the discrimination, is in fact ongoing.... A continuing violation is not stated if all that appears from the complaint is that the plaintiff continues to suffer from the ongoing effects of some past act of discrimination. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885 1889, 52 L.Ed.2d 571 (1977). As we have said, moreover, `(c)omplaints based on civil rights statutes must do more than state simple conclusions; they must at least outline facts constituting the alleged violation.'

Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979); accord, Martin v. New York Department of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978); cf. Coates v. Illinois State Board of Education, 559 F.2d 445, 447, 449 (7th Cir.1977)."

607 F.2d at 1018 (emphasis added). In Goldman, the Court of Appeals held that where plaintiff's complaint alleged that employer's transfer of plaintiff to various departments in employer's department store constituted violations of Title VII and Age Discrimination in Employment Act, reference to plaintiff's repeated unavailing requests to be transferred back to his original department and employer's alleged refusal to honor those requests was insufficient to state a continuing violation of the statute.

The Goldman court explained that if plaintiff meant to claim that the employer's alleged refusals to transfer him to his original department formed part of a continuous chain of misconduct, "it was incumbent upon him to allege facts giving some indication that the ... refusals were themselves separate civil rights violations." Id. (emphasis added). The court added:

"It is not said when these refusals occurred, nor are any facts stated indicating that the refusals to retransfer (as distinct from the original transfers) were motivated by a discriminatory animus. There is, for example, no indication that when the refusals were made a position was open in the large appliance department, or would then have been opened but for discrimination against appellant.... To hold, on such non-specific allegations that the complaint states more than the discrete violations specifically pleaded, would be, in effect, to negate the statutory time requirements for bringing charges. Under the construction urged by plaintiff, every demotion could be turned into a continuing violation merely by pleading that plaintiff had continued to protest unsuccessfully."

Id., at 1018-1019 (citations omitted) (emphasis added). It thus seems clear that a plaintiff alleging a continuing violation would have to outline the facts constituting the alleged present violation. See, United Air Lines v. Evans, 431 U.S., at 558, 97 S.Ct., at 1889 ("the emphasis should not be on mere continuity; the critical question is whether a present violation exists") (emphasis added).

Moreover, a plaintiff may not circumvent the applicable limitations period merely by labeling an act a "continuing" violation. Corbin v. Pan Am. World Airways, Inc., 432 F.Supp. 939, 944 (N.D.Cal. 1977); Tarvesian v. Carr Division of TRW, Inc., supra, at 340. As noted in Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir.1975), "to construe loosely `continuing' discrimination would undermine the theory underlying the statute of limitations."

Thus, a plaintiff in a civil rights case alleging a continuing violation must do more than simply state conclusions or subjective characterizations, or merely label an act a "continuing" violation. See generally, Fisher v. Flynn, supra, at 665; Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir.1977). The United States Court of Appeals for the First Circuit insists on at least the allegation of a minimal factual setting. Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir.1982). In Dewey, the court stated:

"We require more than conclusions or subjective characterizations. We have insisted on at least the allegation of a minimal factual setting. It is not enough to allege a general scenario which could be dominated by unpleaded facts, O'Brien v. DiGrazia, 544 F.2d 543, 546 n. 3 (1st Cir.1976); nor merely to allege without specification that defendants used their powers generally with respect to various governmental bodies to plaintiff's prejudice, Kadar Corp. v. Milbury, 549 F.2d 230 (1st Cir.1977); nor to allege in general terms termination of a job because of plaintiff's refusal of romantic advances made by a superior, Fisher v. Flynn, 598 F.2d 663 (1st Cir.1979); nor to allege simply that plaintiff suffered an adverse prison decision because he had filed a complaint on unspecified matters in court, Leonardo v. Moran, 611 F.2d 397 (1st Cir.1979); nor, finally, to allege that one's constitutional rights had been violated by some undescribed surveillance, Glaros v. Perse, 628 F.2d 679 (1st Cir.1980)."

694 F.2d at 3. Specifically, referring to cases brought pursuant to 42 U.S.C.1983, the court stated:

"We recognize the great utility of 42 U.S.C. 1983 as an instrument of justice in the hands of the weak against the mighty, but we also are aware of the impact of its misuse. Therefore, although we must ask whether the `claim' put forward in the complaint is capable of being supported by any conceivable set of facts, we insist that the claim at least set forth minimal facts, not subjective characterizations, as to who did what to whom and why. In so requiring, we are not alone. At least four other circuits keep us company: United States v. City of Philadelphia, 644 F.2d 187 (3d Cir.1980); Cohen v. Illinois Institute of Technology, 581 F.2d 658 (7th Cir.1978); Anderson v. Sixth Judicial District Court, 521 F.2d 420 (8th Cir. 1975); Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620 (2d Cir.1972)."

Id. (emphasis added)

The complaint in Dewey alleged in Count I that plaintiff, over a period of six years prior to the decision by co-defendant Spitz that plaintiff would have to retire at the end of the 1977-78 academic year because of University policy requiring retirement at age 65, spoke on a number of issues of public interest involving the University, disagreeing with co-defendant Spitz. Plaintiff alleged that the enforcement of the University retirement policy in his case was in retaliation for past exercise of his First Amendment rights. The court found that despite the fact that nearly eight months elapsed from the filing of the complaint (July 29, 1981) to the filing of a second motion to amend it (March 12, 1982), during which time the complaint had been challenged for lack of specificity, plaintiff made "no effort to fill in the gaps as to the nature of the issues discussed, the particular occasions, their recentness or remoteness, the position of the University, the importance of the controversy, the prominence or lack of prominence of plaintiff's comments." Dewey, 694 F.2d, at 4. The First Circuit affirmed the district court's dismissal of Count I of the complaint for failure to state a claim, emphasizing that:

"If such a skeletal set of bland allegations were held to state a cause of action, any employee could put a defendant to its proof or at least force it to affidavits simply by saying: `Over the past ten years my immediate superior and I have talked about various issues of public interest concerning the company (college, agency, store). Occasionally I disagreed with him. This is why I wasn't kept on the payroll.' Such a conclusory charge of retaliation for wholly unidentified talk would be a cheap way of invoking the elaborate apparatus of a trial, despite the most formidable justification proffered by an employer."

Id.

In addition, the Dewey court affirmed ...